United States v. Nasir

United States District Court, D. Delaware

May 16, 2018

UNITED STATES OF AMERICA, Plaintiff,v.MALIK NASIR, Defendant.

MEMORANDUM ORDER

HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE

At
Wilmington this 16th day of May,
2018, having considered Defendant Malik Nasir's
("Defendant" or "Nasir") Motion for a New
Trial and Motion for Judgment of Acquittal Notwithstanding
Verdict (D.I. 115) ("Motion"); and Motion for New
Trial, Motion to Supplement Defendant's Motion for New
Trial, and Motion for Reconsideration of Motion to Suppress
Evidence (D.I. 123) ("Supplemental Motion"),
IT IS HEREBY ORDERED that Nasir's
motions (D.I. 115, 123) are DENIED.

1. On
June 8, 2017, Nasir was found guilty by a jury of maintaining
a storage unit for the purpose of distributing marijuana,
possession with intent to distribute marijuana, and
possession of a firearm by a person prohibited. (See
D.I. 81) After the close of the government's case, Nasir
had moved for a judgment of acquittal, contending the
evidence presented on possession was insufficient to support
a guilty verdict. (See D.I. 96 at 321-22) The Court
denied the motion. (See Id. at 322-23) After the
jury returned its verdict, Nasir renewed his motion, which
the Court again denied. (See Id. at 413) On March 7,
2018, Nasir filed his Motion, moving for a new trial and
judgment of acquittal pursuant to Federal Rules of Criminal
Procedure 33 and 29. (See D.I. 115) After a status
conference on April 16, 2018, during which Defendant
confirmed that he wished to continue being represented by
counsel, Nasir filed his Supplemental Motion. (See
D.I. 123)

2.
Defendant's Motion is untimely. Federal Rule of Criminal
Procedure 33 allows the Court to 'Vacate any judgment and
grant a new trial if the interest of justice so
requires." Unless based on newly discovered evidence,
Rule 33 motions "must be filed within 14 days after the
verdict or finding of guilty." Fed. R. Crim. P. 33(b).
Under Federal Rule of Criminal Procedure 29, a defendant may
move for the Court to "enter a judgment of acquittal of
any offense for which the evidence is insufficient to sustain
a conviction." Such motions must be made or renewed
"within 14 days after a guilty verdict or after the
court discharges the jury, whichever is later." Fed. R.
Crim. P. 29(c)(1). Here, the jury returned its guilty verdict
on June 8, 2017, making Nasir's motions due on June 22,
2017. (See D.1. 81) Nasir's Motion was not filed
until March 7, 2018, more than eight months past the
deadline. (See D.I. 115) Thus, as Defendant
concedes, his Motion is untimely. (See D.I. 115 at
3)

3.
Despite this untimeliness, Defendant contends that the Court
should accept his Motion under an exception for
"excusable neglect, " citing Federal Rule of
Criminal Procedure 45. Rule 45 provides that "[w]hen an
act must or may be done within a specified period, the
court.. . may extend the time... after the time expires if
the party failed to act because of excusable neglect."
Fed. R. Crim. P. 45(b)(1)(B). Assessing "excusable
neglect" requires an equitable analysis based on
"all relevant circumstances, " including "the
danger of prejudice to the [other party], the length of the
delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant
acted in good faith." Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P 'ship,507 U.S. 380, 395
(1993); see also Stutson v. United States, 516 U.S.
193, 196 (1996) (indicating factors apply in criminal cases).
The burden is on the movant to establish excusable neglect.
See Jones v. Chemetron Corp.,212 F.3d 199, 205 (3d
Cir. 2000).

4.
Assuming without deciding that an "excusable
neglect" exception exists in this context, Nasir has
failed to establish that a totality of the circumstances
supports a rinding of excusable neglect. The government will
be prejudiced by Nasir's late filing, as it threatens the
parties' and the Court's ability to proceed to
sentencing (scheduled for later this month). See
Stutson, 516 U.S. at 197 (emphasizing importance of
judicial efficiency and finality). Moreover, discovery may be
required to evaluate the full range of Nasir's claims,
which largely relate to the effectiveness of counsel. The
length of the delay is substantial, as Nasir's Motion was
filed at least eight months late. Nasir has not proven that
the reasons for delay were beyond his control. Nasir has
proceeded with different counsel and contends that the reason
for the delayed filings was his earlier counsel's
ineffectiveness. (See D.I. 115 at 5) (contending
trial counsel failed to file Rule 29 and 33 motions, despite
Nasir's desire for him to do so) However, Nasir has put
forth no evidence substantiating his claims, and in any
event, Nasir's current counsel was appointed in September
2017, and yet another five months passed before Nasir's
Motion was filed. (See D.I. 99 at 5-6) Even
crediting Nasir's reasoning for the delay would not, in
totality, support a finding of excusable neglect. Similarly,
Nasir has not established that he acted in good faith, but,
even assuming he did, the totality of the circumstances does
not give rise to a finding of excusable neglect. Nasir's
circumstances are by no means extraordinary and no injustice
will result from this case proceeding to sentencing (and
thereafter to appeal, should Defendant wish to pursue one).
See Consol Freightways Corp. of Del v. Larson, 827
F.2d 916, 918 (3d Cir. 1987) (emphasizing that standard for
excusable neglect is "strict" and "applies
only to extraordinary cases where injustice would otherwise
result") (internal quotation marks omitted).
Accordingly, Nasir has not met his burden of showing that the
interests of justice, and the equities generally, require
reaching the merits of his claims.

5. This
conclusion is confirmed by the fact that Defendant's
Motion is largely based on claims of ineffective assistance
of counsel and, thus, is premature. (See D.I. 115 at
5 n.5, 10-14) Ineffective assistance of counsel claims are
generally not ripe on direct review, but rather are to be
presented, if at all, on collateral review. See United
States v. Kennedy,354 Fed.Appx. 632, 637 (3d Cir. 2009)
("[R]arely, if ever, should an ineffectiveness of
counsel claim be decided in a motion for a new trial or on
direct appeal."); United States v. Thornton,327 F.3d 268, 271 (3d Cir. 2003) ("It has long been the
practice of this court to defer the issue of ineffectiveness
of trial counsel to a collateral attack."). To the
extent the Court has discretion to handle such claims at this
stage, Nasir has not presented the Court with a persuasive
reason to do so.

6.
Defendant also challenges the Court's legal rulings,
particularly the denial of Nasir's motion to suppress.
(See D.I. 115 at 14-15) Pursuant to Local Rule
7.1.5, a motion for reconsideration should be granted only
"sparingly." The decision to grant such a motion
lies squarely within the discretion of the district court.
See Dentsply Int'l, Inc. v. Kerr Mfg. Co., 42
F.Supp.2d 385, 419 (D. Del. 1999); Brambles USA, Inc. v.
Blocker,735 F.Supp. 1239, 1241 (D. Del. 1990). These
types of motions are granted only if the Court has patently
misunderstood a party, made a decision outside the
adversarial issues presented by the parties, or made an error
not of reasoning but of apprehension. See Schering Corp.
v. Amgen, Inc.,25 F.Supp.2d 293, 295 (D. Del. 1998);
Brambles, 735 F.Supp. at 1241. A motion for
reconsideration maybe granted only if the movant can show at
least one of the following: (i) there has been an intervening
change in controlling law; (ii) the availability of new
evidence not available when the court made its decision; or
(iii) there is a need to correct a clear error of law or fact
to prevent manifest injustice. See Max's Seafood Cafe
by Lou-Ann, Inc. v. Quinteros,176 F.3d 669, 677 (3d
Cir. 1999).

7.
Apart from being untimely, Defendant's Motion does not
meet any of the conditions under which reconsideration is
granted. Nasir presents no intervening change in the law and
no newly available evidence. Further, there is no need to
correct an error of law or prevent manifest injustice.
Nasir's disagreement notwithstanding, the Court continues
to believe it made the correct legal rulings. Defendant will
have an opportunity to challenge the Court's rulings in
his direct appeal, which he can pursue only after sentencing
takes place.

8.
Finally, Defendant's Supplemental Motion does not alter
the outcome. As an initial matter, it is inappropriately
raised. Nasir filed the Supplemental Motion as three pro
se motions. (See D.I. 123 at 10 of 23 (signing
motion "Malik Nasir, Pro Se"); id. at 18
of 27 (claiming "defendant [Nasir] was permitted to
proceed pro se"); id. at 24 of 27 ("NOW
COMES, Malik Nasir, defendant"); D.I. 123-1
("[A]ttached you will find three (3) motions prepared
and submitted by ... Malik Nasir.") Nasir, however, was
and continues to be represented by counsel - a point that, at
least the Court believed, was both clear and consistent with
Nasir's wishes as of the April 15, 2018 status
conference. While the Court ordered that Nasir could
supplement his motion for a new trial to present any
additional argument as to why the pending motions should not
be denied as untimely, the Court did not grant Nasir special
dispensation to file motions in a pro se capacity,
separate and apart from his attorney. (See D.I. 122)
Defendant has no right to a "hybrid
representation." McKaskle v. Wiggins, 465 U.S.
at 168, 183 (1984).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;9. In
any event, even if the Court were to consider the substance
of Nasir&#39;s Supplemental Motion, it would not change the
Court&#39;s decision. At bottom, the Supplemental Motion
presents, at greater length, the same arguments contained in
Nasir&#39;s Motion. First, Nasir reiterates that ineffective
assistance of counsel is the reason his motions were
untimely. (See D.I. 123 at 3-5, 9 of 27) Next, Nasir
presents three additional claims of ineffective assistance of
counsel (see Id. at 18-22 of 27), which (for the
reasons explained above) are premature and should be raised
(if at all) on collateral review. Finally, Nasir again seeks
reconsideration of the Court&#39;s order denying his
suppression motion. (See Id. at 24-26 of 27) Nasir,
however, again fails to establish any of the requirements for
reconsideration, ...

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